394 U.S. 440 (1969)
On January 25, 1966, two men robbed the Western Union office in Fresno, California, shortly after midnight.1 Joseph David, the night manager, was the sole non-participant witness to the crime.2 Petitioner Foster was charged by information with armed robbery of the office in violation of California Penal Code § 211a.3 One of the robbers, Clay, surrendered to the police the day after the robbery and implicated Foster and Grice as his accomplices.4
Foster and Grice were tried together. Grice was acquitted while Foster was convicted.5 After Foster's arrest, David was called to view a lineup consisting of three men, one of whom was the tall petitioner wearing a leather jacket similar to that seen on the robber; the other two men were short.6 David could not positively identify petitioner after the lineup or after a subsequent one-to-one confrontation with him.
Approximately one week or ten days later, David viewed a second lineup of five men in which petitioner was the only individual who had appeared in the first lineup.7 This time David identified petitioner as the robber.8 At trial, David testified regarding his lineup identifications and also identified petitioner in the courtroom.9 The only other evidence against petitioner concerning this robbery was the testimony of accomplice Clay.10
The California District Court of Appeal affirmed Foster's conviction, and the State Supreme Court denied review.11
Whether the conduct of the police lineup resulted in a violation of petitioner's constitutional rights?12
Judged by the totality of the circumstances, the conduct of identification procedures may be so unnecessarily suggestive and conducive to irreparable mistaken identification as to be a denial of due process of law.13
Yes. The first lineup was composed so that petitioner stood out from the other two men by his height and by wearing a leather jacket similar to that worn by the robber.14 When this did not produce a positive identification, the police permitted a one-to-one confrontation between petitioner and the witness.15 Even after this confrontation the witness remained not sure whether petitioner was the robber.16
Some days later another lineup was arranged in which petitioner was the only person who had also participated in the first lineup.17 This procedure made it all but inevitable that the witness would identify petitioner whether or not he was in fact the man, thereby violating due process.18
The conduct of the police lineups violated petitioner's constitutional right to due process of law.19
Related opinions on this issue
Justice Black dissented on the ground that the majority's decision improperly invaded the province of the jury.20 He argued that judges should not exclude eyewitness identification evidence based on their own views of fairness rather than on specific constitutional provisions.21 The Constitution leaves questions concerning the admissibility of evidence to the states.22
Due process does not authorize the Court to impose its conceptions of fairness to deprive juries of the opportunity to hear and weigh witness testimony.23 Black also criticized the remand as creating ambiguity regarding the evidence admissible on retrial.24 He argued against the Court deciding harmless error questions in the first instance.25